How will SCOTUS rule on Hobby Lobby tomorrow?

posted at 2:01 pm on June 29, 2014 by Jazz Shaw

There are just two cases left to be decided in this session of the US Supreme Court and we should have both rulings tomorrow. Since many of you fall into roughly the same category of geekdom when it comes to government and public policy as many other citizens do about baseball, I’m sure you’re waiting with bated breath. Harris vs Quinn will be a big one, no doubt, since it has the potential to deal a severe blow to unions and their ability to pick the pockets of those who choose not to be members, but the one we’ve been covering here with the most intensity is Hobby Lobby.

Regular readers already know what’s at stake, (and if you don’t, you can see much of the history of it with these links) but how will the court decide this one? Will owners of a private business retain the same rights of religious freedom or does ObamaCare override all of that?

In light of how the oral argument went, the expectation from most legal analysts is that tomorrow’s decision will result in a ruling in favor of Hobby Lobby and Conestoga under the Religious Freedom Restoration Act. The unanswered question at this point is how wide or narrow that ruling might be, because the implications of a ruling that provides private entities with a basis to assert the religious preferences of their owners could be quite far reaching…

Beyond birth control, there are countless other areas where a broadly expansive ruling on the RFRA’s application to this situation would have a big impact. In the employer-employee context, it would theoretically mean that an employer would have the basis to deny coverage for other medical conditions or procedures if they can put forward a credible religious objection to the same. Outside of that relationship, such a ruling would have an obvious impact on the issues that have arisen in recent years surrounding same-sex marriage and the question of whether certain businesses — such as wedding photographers and bakers — should have a right to refuse to provide service to same-sex wedding ceremonies notwithstanding any applicable law banning discrimination based on sexual orientation. Depending on how broadly the Court rules tomorrow, there would seem to me to be a strong argument in favor of such vendors being able to exempt themselves from generally applicable laws such as anti-discrimination laws. Indeed, in anticipation of this decision several states have already made moves to strenthen their own versions of the RFRA to give protection to businesses in these types of situations. In those states, obviously, it wouldn’t matter what the Supreme Court decides.

Given the recent history of this particular court, I think that’s a fairly safe bet. The Justices haven’t tended to make sweeping, precedent shifting calls on hotly contested social debates which would hold the potential to seriously alter how things operate across the entire national spectrum. More often, they have made narrowly defined decisions which essentially impact just the litigants in question or a limited class of operatives in very similar circumstance. And that’s when they choose to hear the case at all. In many others they have either punted entirely or kicked the case for a lack of standing by those bringing it without judging the underlying case on its merits.

It seems likely that this one will go the same way, with Hobby Lobby prevailing but not opening the door to some wholesale platform for individuals or businesses (outside of charitable organizations and churches) to reject all manner of federal law based on their religious convictions. I also don’t expect to see them return this one unanimously, as they almost miraculously did in 12 of the last 16. Expect most, if not all of the four liberal justices to go against Hobby Lobby. I’d be pleasantly surprised to be proven wrong on this one, but it seems doubtful.

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Liberals always complain about corporations having no values or ethics until a corporation wants to exercise Christian values. Then liberals want to legally restrict corporations to be being purely profit making machines.

Slightly OT, but Alito will then likely write for the majority in Harris on forced membership in public unions, since he and Roberts have written fewer opinions than the rest, and they do try to keep the caseload roughly equal.

The Justices haven’t tended to make sweeping, precedent shifting calls on hotly contested social debates which would hold the potential to seriously alter how things operate across the entire national spectrum.

Yeah … just allowing holders of secured debt to have their property rights trampled all over (and to make a mockery of the concept of a contract) along with BarkyCare and the new definition of a tax being any time the feral government wants to steal money from the citizenry, even if it’s for inaction and then spent on un-Constitutional feral government control projects.

This Court has also done pretty well to keep the lie of Catastrophic Anthropogenic Global Warming alive and the feral government empowered to rape and pillage the citizenry over this delusion.

Yeah … this Court has been pretty tame. It aided and abetted Barky in killing the American Constitutional Republic and establishing the AMerican Socialist Superstate … but what’s a nation between enslaved subjects, anyway …

5-4 ruling for Hobby Lobby with the narrowest ruling the Court is capable of writing. The claim under RFRA isn’t bad but it’s not exactly good either and precedent is all over the place on this so in the end, go with personal policy preferences of the justices.

whatever was used to blackmail roberts (according to one theory regarding his obamacare vote)is still out there. if he was blackmailed before, 5-4 against hobby lobby. if he wasn’t, 5-4 for hobby lobby.

If this is ruled in Hobby Lobby’s favor, it is difficult for me to see how it would not have a positive effect for Christian business owners who refuse to participate in a same-sex “ceremony.”

INC on June 29, 2014 at 2:21 PM

There’s some wiggle room there if Hobby Lobby wins. This case is about the relationship between employers and employees, and the services offered to employees like health insurance aren’t provided by the business to the general public. If you operate a business through you’re serving the general public. I wouldn’t read too much into it even if Hobby Lobby wins.

“The Court of Appeals is where policy is made.” — a Wise, empathetic latina who thought that Spanish didn’t have adjectives and didn’t know the difference between “imminent” and “eminent”.

Yep. That’s what the Judiciary has sunk to, without a peep from the Senate GOP as the idiot Latina sailed through on the notion that empathy is a legitimate main criterion for a judge or decision, in direct opposition to over three millenia of history of Western jurisprudence.

7-2 for Hobby Lobby would be a big slap in obaME!’s face. I hope it happens. Something weird going on lately, it seems that support is fading for the communist POS and some folks seem more able to speak out against him. The SCOTUS as well.

Please stop with this idiocy. Benedict Roberts wasn’t blackmailed in any way, shape, or form. He’s a lowlife, demented sackOS. That’s what he is and there was no need for anyone to do anything. Roberts is retarded traitor who has no business on any bench, other than a park bench.

I agree, except I think it’ll be 7-2. Only Thomas and Alito will vote for religious freedom over the power of the state. Sure, Roberts and Scalia might join the dissent, but only because Kennedy is giving them cover. If he weren’t, one or both of them would have caved. I honestly can’t believe people think this is going to go Hobby Lobby’s way, even in a limited sense. I hope I’m wrong, but I don’t think I will be.

Obama no longer has to worry about his legacy. So the Supreme Court can just smack him down without abandon. I wouldn’t be surprised if the house lawsuit goes into specifics about his overreach in legal terms.

Obama no longer has to worry about his legacy. So the Supreme Court can just smack him down without abandon. I wouldn’t be surprised if the house lawsuit goes into specifics about his overreach in legal terms.

sorrowen on June 29, 2014 at 2:41 PM

You mean “The Worst President In The History of The World”? That legacy?

You mean “The Worst President In The History of The World”? That legacy?

VegasRick on June 29, 2014 at 2:44 PM

I was thinking “Greatest Disaster to Come Out of Indonesia”, which is no mean feat seeing how Barky was competing with massive volcanic eruptions and mega-tsunamis. Barky’s destruction made all those historic disasters seem like child’s play.

I’m assuming it’s against Hobby Lobby since Obama hasn’t threatened to court publicly.. and he would know how they ruled by now.

Just sayin.

JellyToast on June 29, 2014 at 2:42 PM

Obama doesn’t care as much as his is not his signature achievement. Obamacare thinks this made him the third person of the liberal trinity after FDR (Social Security) and LBJ (Medicare).

A loss might actually be to the Dems’ benefit. They need to GOTV this fall, and War on Wimmin might get a boost if the hopey-changey crowd thinks it will have to pay for contraceptives along with their school loans. (I expect school loan “relief” to be part of the Dem platform, too.)

I was thinking “Greatest Disaster to Come Out of Indonesia”, which is no mean feat seeing how Barky was competing with massive volcanic eruptions and mega-tsunamis. Barky’s destruction made all those historic disasters seem like child’s play.

ThePrimordialOrderedPair on June 29, 2014 at 2:49 PM

I wonder if they still have monuments to him over there touting where he was born. I’d bet they are saying he was born in the US now.

Like a blind hog searching for acorns or a stopped analog clock, even Mataconis is correct now and then. (But you make wish to note the occasion in your journals, as this particular occurrence comes far less frequently than the success of the hog or the clock).

But – as we knew long before he was even confirmed, yet stupid people continue to complain about when he doesn’t go their way – Roberts favors narrow rulings and great deference to both legislature and executive actions. So closely-held companies will be granted exception for religious freedom, as will religious organizations and their activities, but publicly held firms will be forced to comply with the law.

I expect this will not be one of the features of ObamaCare which survives a Republican Congress and President.

When does he start wearing a uniform with all of the medals? Or at least a funny hat?

VegasRick on June 29, 2014 at 3:06 PM

Barky skips those old ways and just likes to say “MY military” instead. For anyone who doubted he decided all on his own to take “his military” to war in Libya. He also likes to refer to the White House lawn as “MY lawn”. There’s also “MY government” and on and on.

5-4 ruling for Hobby Lobby with the narrowest ruling the Court is capable of writing. The claim under RFRA isn’t bad but it’s not exactly good either and precedent is all over the place on this so in the end, go with personal policy preferences of the justices.

alchemist19 on June 29, 2014 at 2:30 PM

This. Neither Hobby Lobby nor Conestoga Wood are typical ‘large corporations’, both are family-owned, and neither is asking that the mandate be struck down in its entirety.

At least, I’m hoping. I can never get enough of seeing JugEars or his administration slapped around by SCOTUS.

it would theoretically mean that an employer would have the basis to deny coverage for other medical conditions or procedures if they can put forward a credible religious objection to the same.

Why shouldn’t they be able to do that? Employers shouldn’t be providing employees’ health insurance in the first place, and if they do, they should get to determine what benefits they’re going to cover. If employees don’t like it, they can buy their own health insurance, or get a job with an employer whose policies and benefits are more to their liking.

This notion that the federal government gets to dictate every aspect of everybody’s life is profoundly un-American.

Nobody’s making excuses for Roberts. It’s the worst kept secret in the Beltway that he is a closeted gay and his children were illegally adopted. They threatened to destroy his family and his legacy. He folded.

Nobody’s making excuses for Roberts. It’s the worst kept secret in the Beltway that he is a closeted gay and his children were illegally adopted. They threatened to destroy his family and his legacy. He folded.

ezspirit on June 29, 2014 at 3:22 PM

obaME! blackmailed Roberts because he is gay? Roberts couldn’t have countered with well so are you so………………

IMO it comes down to a SCOTUS ruling that essentially upholds the right of religious freedom or a firestorm that will make the Chick-Fil-E appreciation day look like a wiener roast. [clue for the trolls- while tasty, nobody waited in line for hours just to get a chicken sandwich]

And BTW, Hobby Lobby is probably the best store that bridges the gap between art supplies and craft supplies.

That’s an excuse. Benedict Roberts didn’t “fold”. He came out with the opinion he wanted. He helped Barky put the final nail in the American Constitutional Republic’s coffin. Willingly and happily. It will go down in history as one of the most insane judicial opinions, ever, but it is what Roberts wanted it to be. He’s that much of a lowlife, treasonous retard.

whatever was used to blackmail roberts (according to one theory regarding his obamacare vote)is still out there. if he was blackmailed before, 5-4 against hobby lobby. if he wasn’t, 5-4 for hobby lobby. jlw on June 29, 2014 at 2:32 PM

Yeah but we just got the 12th 9-0 ruling against 0b00ba from this court too, so, conundrum.

Should they rule in favor of HL, it would put the camels nose under the tent when it comes to ruling on the abolition of the institution of marriage as it has been known for millenniums. bimmcorp on June 29, 2014 at 3:22 PM

If this is ruled in Hobby Lobby’s favor, it is difficult for me to see how it would not have a positive effect for Christian business owners who refuse to participate in a same-sex “ceremony.”
INC on June 29, 2014 at 2:21 PM

Not the same thing – Hobby Lobby doesn’t manufacture condoms (at least I don’t think that’s one of their craft kits… :) )
This is purely the government saying you have to buy condoms for your employees.

Here’s the catch – if the court rules that condoms are a right then it’s LAWFUL to pass a law to force all corporations to provide guns for their employees.

For Hobby Lobby, but only by claiming the Obamacare law went a hair too far. Effectively leaving open the possibility that the government can still force Christians in business to violate their religious beliefs, even to the point of supporting murder, if the law is written just right. And, of course, meaning that the whole issue will have to be fought in the courts again when a new law is passed that is just different enough to argue the old decision doesn’t apply.

I think SCOTUS wants to be very careful not to issue a ruling that might be used in any way to provide freedom of conscience when faced with SSM laws.

(Are there actually any pro-SSM laws? It seems like nearly every state that allows it was forced to by a judge, directly or indirectly.)

I agree, except I think it’ll be 7-2. Only Thomas and Alito will vote for religious freedom over the power of the state. Sure, Roberts and Scalia might join the dissent, but only because Kennedy is giving them cover. If he weren’t, one or both of them would have caved. I honestly can’t believe people think this is going to go Hobby Lobby’s way, even in a limited sense. I hope I’m wrong, but I don’t think I will be.

Rational Thought on June 29, 2014 at 2:39 PM

Are you thinking Hobby Lobby is that dead because of the way Scalia and Kennedy voted in the Smith case – which of course lead to RFRA in the first place?

You will be wrong. I’m hoping for 6-3, with Breyer jumping to the other side. I suspect it will be 5-4 though, but the screams of “the war on [middle-class and affluent]women [who can well afford to pay for their fun or at least subject it to a co-pay or deductible]” would be delicious.

BTW, I’m putting my money down now for 9-0 on the Little Sisters of the Poor. But if the Court goes 6-3 for Hobby Lobby, watch the Obama administration quietly try to withdraw its appeal in Little Sisters of the Poor. How many times can Obama afford to lose 9-0 without some people noticing?

What I mean to say is that if they rule in favor of Hobby Lobby, they would have to lean more towards the Conservative position regarding marriage. They do not want to do this. John Roberts worked for gay advocacy groups throughout his legal career. Whether or not he, himself, is homosexual is not clear.

I probably used the camel’s nose part incorrectly. I do that stuff from time to time. I’m an old man, you see..?

For Hobby Lobby, but only by claiming the Obamacare law went a hair too far. Effectively leaving open the possibility that the government can still force Christians in business to violate their religious beliefs, even to the point of supporting murder, if the law is written just right. And, of course, meaning that the whole issue will have to be fought in the courts again when a new law is passed that is just different enough to argue the old decision doesn’t apply.

I think SCOTUS wants to be very careful not to issue a ruling that might be used in any way to provide freedom of conscience when faced with SSM laws.

(Are there actually any pro-SSM laws? It seems like nearly every state that allows it was forced to by a judge, directly or indirectly.)

There Goes the Neighborhood on June 29, 2014 at 3:43 PM

Short version: I think they want a ruling that will protect Hobby Lobby in this one case, without establishing any principle that protects anyone else.

It’s speculation. We know that Roberts mysteriously reversed his opinion after Kagan shared it with the administration and Alito in particular was furious.

None of this excuses Roberts putting his personal life and his ego ahead of his sworn duties to uphold the Constitution. Just about every conservative feels betrayed by Roberts, and rightfully so. This is just them trying to understand why and how Bush could have been so wrong in nominating him to the bench.

Same here. I’m looking at it in the context of a business owner acting on both their responsibilities and their rights, within the context of their faith, to exercise their conscience in the business decision making process.

If the decision goes against Hobby Lobby, I think we’ll have a lot of business owners who decide that it is more important to them to protect their own conscience rather than allowing that conscience to be seared through an act of compliance with the court’s legal decision. If so, then they’re also likely to decide that it isn’t worth it to them to provide health insurance for their employees.

That won’t hurt the Obama admin any, since they designed Obamacare to decouple health insurance from the workplace, but it is likely to hurt the employees.

The loss of conscience protections will do more harm than good in the long run, but Liberals care nothing about that.

I also disagree that the same Chief Justice who was bawled out during the SOTU was an eager ally to this administration. That said, I think he will knife conservatives in the back again tomorrow, maybe this time more willingly. As someone said upthread, that he hasn’t been threatened assumes his compliance.

Given the recent history of this particular court, I think that’s a fairly safe bet. The Justices haven’t tended to make sweeping, precedent shifting calls on hotly contested social debates which would hold the potential to seriously alter how things operate across the entire national spectrum.

The original law did not have a severability clause. It is my understanding that without the severability clause, one unconstitutional rule within Obamacare would or could make the entire law null and void.

The case, Harris v. Quinn, is about the constitutionality of “agency fees” charged by public sector unions to all workers in a unionized setting, even non-union members. These fees are essential to their operation.

Roberts was in the majority on the Citizens United case which said corporations are people with free speech rights protected by the First Amendment. If corporations have First Amendment protections for their freedom of speech do they have First Amendment protections for their freedom of religion?

1) SCOTUS is at least as concerned with how its rulings are perceived as with whether they are correct.
2) The Obamacare law is extremely high-handed towards religion, essentially denying there is any such thing as a legitimate religious concern about ANY form of contraceptive, even those that can cause the death of a fertilized egg. (Technically, such contraceptives are not really contraceptives at all, but that’s how the government treats them.)
3) SCOTUS wants people to believe that religious freedom is at least respected, so they will be motivated to find some relief for Hobby Lobby.
4) On the other hand, SCOTUS will defer to the government where it describes any drugs as a contraceptive, even if it causes the death of a fertilized egg, and is therefore an abortifacient. The fig leaf will be that some define pregnancy as only beginning when the fertilized egg implants in the womb, so any death of a fertilized egg prior to that time still qualifies as a contraceptive. (I don’t know that SCOTUS will make that excuse directly. They may just defer to the government’s definitions.)
5) So SCOTUS will basically want to defer to the legislature’s ability to make its own laws and the executive branch’s ability to interpret those laws as it sees fit. Which, of course, conflicts with the desire to give Hobby Lobby some kind of win.
6) SCOTUS believes they can be clever enough to give Hobby Lobby a win while still not cutting short the government’s power overall.

So I expect SCOTUS to try to make people feel like religious freedom is still protected, while simultaneously leaving the government broad powers to ignore religious freedom except in very narrow circumstances.

But, of course, all this is reading tea leaves. While I think each of these main points is largely true, SCOTUS may still surprise me and just give the government everything they want, while including a lot of meaningless but flowery prose about the respect for religious freedom in our country that just happens not to apply this time.

Are you thinking Hobby Lobby is that dead because of the way Scalia and Kennedy voted in the Smith case – which of course lead to RFRA in the first place?

alchemist19 on June 29, 2014 at 3:44 PM

Well that would certainly apply here. The birth control mandate doesn’t target a specific religion — it applies across the board in what the court in Smith termed a “neutral law of general applicability”– so the Smith precedent suggests quite strongly Hobby Lobby will lose.

When does he start wearing a uniform with all of the medals? Or at least a funny hat?
VegasRick on June 29, 2014 at 3:06 PM

I’d say the main reason he hasn’t is he sees the military as something of contempt, so he doesn’t think the symbolism would be something to inspire respect. Barry would look utterly ridiculous in a a Dear Leader uniform with gold braid and fake medals.

I’d say the main reason he hasn’t is he sees the military as something of contempt, so he doesn’t think the symbolism would be something to inspire respect. Barry would look utterly ridiculous in a a Dear Leader uniform with gold braid and fake medals.

ConstantineXI on June 29, 2014 at 4:26 PM

That’s what I think of every time I see him in his bombardier jacket. It just doesn’t fit.

I’d say the main reason he hasn’t is he sees the military as something of contempt, so he doesn’t think the symbolism would be something to inspire respect. Barry would look utterly ridiculous in a a Dear Leader uniform with gold braid and fake medals.

ConstantineXI on June 29, 2014 at 4:26 PM

That’s what I think of every time I see him in his bombardier jacket. It just doesn’t fit.

VegasRick on June 29, 2014 at 4:29 PM

Why do I now have a picture of barky in his girly bicycle helmet and mom jeans holding an umbrella as his “uniform” in my mind?

Didn’t the owner of Hobby Lobby say that he would close all of his store if they lost the case? I vaguely remember something of that sort. Anyone with a better memory care to weigh in?
D-fusit on June 29, 2014 at 4:26 PM

He’d have no choice. The Tyranny in DC wouldn’t allow him to run his business as he sees fit.

In private I don’t think this would bother god-King Hussein in the slightest. Hasn’t it become obvious that Obama does not WANT private sector jobs? Not even epic incompetence can explain the continued failure of the economy… This is on purpose.